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Trump School Safety Commission: Time to Update FERPA

By Benjamin Herold on
December 18, 2018 3:34 PM

Confusion surrounding the nation's main federal law protecting students' privacy is hindering the ability of schools and law enforcement to prevent shootings and other violence, concludes a new report released Tuesday by the Federal Commission on School Safety.

The commission, led by U.S. Education Secretary Betsy DeVos, called on Congress to modernize the Family Educational Rights and Privacy Act, or FERPA, which generally prevents schools from sharing students' educational records without parental consent. The commission also wants the federal education department to clarify how schools may apply the law's existing provisions during safety emergencies.

"A delicate balance exists between privacy and security in schools," the group's report reads. "It is critical to recognize that some education records may contain information that, if disclosed to appropriate officials, could help prevent students from harming themselves or others."

The report also recommends that the U.S. Department of Health and Human Services review laws and guidance related to the sharing of sensitive health information, with the aim of making it easier for health care providers to share information about individuals who may be a safety threat.

"I think Congress will look at privacy issues in 2019," said Reginal Leichty, the founding partner of Foresight Law + Policy, an education advisory and lobbying firm based in Washington. "But FERPA is probably not something they will legislate on next year."

FERPA During Emergencies

FERPA became part of the school-safety conversation when victims' families and others argued that the Parkland shooter was not identified as a potential threat in part because the schools he attended did not share with law enforcement more information about his long history of trouble.

The federal Commission on School Safety agreed that is a problem.

While FERPA seeks to broadly protect students' educational records from unauthorized disclosure to third parties, the commission wrote in its report, the law does contain a number of exceptions that give schools greater latitude than they often exercise.

Under the law's "school official" exception, for example, schools and districts may disclose personally identifiable information from a student's educational record without parental consent to individuals determined to have a "legitimate educational interest" in the information.

The commission highlighted school resource officers as examples of such relevant school officials, saying they have a legitimate interest in ensuring school safety. The commission recommended that the U.S. Department of Education provide technical assistance to schools specifying that they may disclose to such staff members relevant disciplinary information about students.

And the other FERPA exception highlighted by the commission has to do with health or safety emergencies. The law says that during such times, schools may disclose students' private information without consent to "appropriate parties," such as law enforcement and first responders, so long as the information is necessary to protect the health or safety of other individuals.

Amelia Vance, the director of education privacy and the policy counsel at the Future of Privacy Forum, a Washington think tank, said schools and districts consistently report that they don't understand how this health and safety exception works. As a result, she said, they are often overly cautious about not sharing personal student information during emergencies.

"If you have an emergency, and in good faith you disclose information in order to deal with that emergency, you're going to be OK," she said. "The department has made clear it is not going to second guess you, as long as you can share a rational basis for believing you faced a significant, articulable threat."

The commission also recommended that the federal education department clarify that in some circumstances, such as wide-ranging natural disasters or events that knock out a district's data centers, state departments of education may invoke FERPA's health and safety emergency exception to disclose students' personal information on behalf of districts.

The federal commission suggested a way schools might work around such concerns.

"If a school's security department or campus police maintains the school's surveillance video system and, as a result, creates surveillance footage for a law enforcement purpose, FERPA would not prevent sharing the surveillance footage with local law enforcement," the group's report reads. "Smaller schools without an existing law enforcement unit or security department can still utilize this exclusion by designating a school official, such as the vice-principal, as the school's law enforcement unit for this purpose."

The federal commission also suggests that states make sure their own privacy laws—many of which go further than FERPA—don't hinder efforts to promote school safety.

And when it comes to students' sensitive health records, the commission suggested fresh analysis of the Health Insurance Portability and Accountability Act, or HIPAA, to promote greater coordination between mental health providers, law enforcement, and school personnel.

Perhaps the biggest question at hand, though, is whether the commission's report will carry enough weight to finally push through an overhaul of FERPA.

For years, similar attempts have fallen far short. And some experts remain skeptical. Leighty of Foresight Law+Policy, for example, said that while he expects a robust privacy conversation on Capitol Hill in 2019, any legislative action is more likely to be focused on consumers than students.

But the federal school safety commission now lending its weight to calls for a FERPA overhaul is headed by a number of high-ranking cabinet officers, including DeVos, Acting Attorney General Matthew Whitaker, Homeland Security Secretary Kirstjen Nielsen, and Health and Human Services Secretary Alex Azar.

In addition, a key member of Congress, Republican Senator Lamar Alexander of Tennessee, recently announced that he would not seek re-election in 2020, fueling speculation that he could seek a key education-policy victory before stepping down.

"That could create a climate where we actually do see a FERPA rewrite pass," said Vance of the Future of Privacy Forum. "Privacy is going to stay in the headlines, and this is a bipartisan issue."

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